SB29INTRODUCED
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SB29
I2D96ZZ-1
By Senator Weaver
RFD: Judiciary
First Read: 06-Feb-24
PFD: 05-Feb-24
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6 I2D96ZZ-1 02/05/2024 THR (L)THR 2023-3741
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PFD: 05-Feb-24
SYNOPSIS:
Under existing law, the term "private image"
includes a recording that has been edited, altered, or
otherwise manipulated from its original form.
This bill would amend the definition of "private
image" to include a recording that, to a reasonable
person, depicts an identifiable individual regardless
of whether the recording was generated through
digitization or any other electronic process.
Under existing law, the term "visual depiction"
includes a portrayal, representation, illustration,
image, likeness, or other thing that creates a sensory
impression, whether an original, duplicate, or
reproduction.
This bill would amend the definition of "visual
depiction" to include a thing that was generated
through digitization or any other electronic process.
This bill would define the terms "child sexual
abuse material," "digitization," and "recognizable
physical characteristic."
Under existing law, it is unlawful for any
person to knowingly disseminate, display publicly,
knowingly possess, knowingly possess with intent to
disseminate, or knowingly film, print, record,
photograph, or otherwise produce certain obscene matter
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photograph, or otherwise produce certain obscene matter
depicting an individual under 17 years of age.
This bill would provide that it is unlawful for
any person to knowingly disseminate, display publicly,
knowingly possess, knowingly possess with intent to
disseminate, or knowingly film, print, record,
photograph, or otherwise produce certain obscene matter
depicting an individual under 18 years of age.
Under existing law, it is unlawful for any
parent or guardian to knowingly permit or allow their
child, ward, or dependent under 17 years of age to
engage in the production of certain obscene material
containing a visual depiction of the child, ward, or
dependent.
This bill would provide that it is unlawful for
any parent or guardian to knowingly permit or allow
their child, ward, or dependent under 18 years of age
to engage in the production of certain obscene material
containing a visual depiction of the child, ward, or
dependent.
This bill would also make nonsubstantive,
technical revisions to update the existing code
language to current style.
Section 111.05 of the Constitution of Alabama of
2022, prohibits a general law whose purpose or effect
would be to require a new or increased expenditure of
local funds from becoming effective with regard to a
local governmental entity without enactment by a 2/3
vote unless: it comes within one of a number of
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vote unless: it comes within one of a number of
specified exceptions; it is approved by the affected
entity; or the Legislature appropriates funds, or
provides a local source of revenue, to the entity for
the purpose.
The purpose or effect of this bill would be to
require a new or increased expenditure of local funds
within the meaning of the section. However, the bill
does not require approval of a local governmental
entity or enactment by a 2/3 vote to become effective
because it comes within one of the specified exceptions
contained in the section.
A BILL
TO BE ENTITLED
AN ACT
Relating to crimes and offenses; to amend Sections
13A-6-240, as last amended by Act 2023-464, 2023 Regular
Session, 13A-12-190, 13A-12-191, 13A-12-192, 13A-12-193,
13A-12-194, 13A-12-196, 13A-12-197, and 13A-12-198, Code of
Alabama 1975; to further provide for the definitions of
private image and visual depiction; to further provide for the
age of a child for offenses involving obscene materials
containing visual depictions of children; to make
nonsubstantive, technical revisions to update the existing
code language to current style; and in connection therewith
would have as its purpose or effect the requirement of a new
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would have as its purpose or effect the requirement of a new
or increased expenditure of local funds within the meaning of
Section 111.05 of the Constitution of Alabama of 2022.
BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
Section 1. Sections 13A-6-240, as last amended by Act
2023-464, 2023 Regular Session, 13A-12-190, 13A-12-191,
13A-12-192, 13A-12-193, 13A-12-194, 13A-12-196, 13A-12-197,
and 13A-12-198, Code of Alabama 1975, are amended to read as
follows:
"§13A-6-240
(a) A person commits the crime of distributing a
private image if he or she knowingly posts, emails, texts,
transmits, or otherwise distributes a private image when the
depicted person individual has not consented to the
transmission and the depicted person individual had a
reasonable expectation of privacy against transmission of the
private image.
(b)(1) For purposes of this section, "private image"
means a photograph, digital image, video, film, or other
recording of a person an individual who is identifiable from
the recording itself or from the circumstances of its
transmission and who is engaged in any act of sadomasochistic
abuse, sexual intercourse, sexual excitement, masturbation,
breast nudity, as defined in Section 13A-12-190, genital
nudity, or other sexual conduct , as defined in Section
13A-12-190.
(2) The term includes a recording that has been edited,
altered, or otherwise manipulated from its original form.
(3) The term includes a recording that, to a reasonable
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(3) The term includes a recording that, to a reasonable
person, depicts an identifiable individual regardless of
whether the recording was generated through digitization, as
defined in Section 13A-12-190, or any other electronic
process.
(c)(1) For purposes of this section, a "reasonable
expectation of privacy" includes, but is not limited to,
either of the following circumstances:
a. The person individual depicted in the private image
created it or consented to its creation believing that it
would remain confidential.
b. The sexual conduct depicted in the image was
involuntary.
(2) There is no reasonable expectation of privacy
against the transmission of a private image made voluntarily
in a public or commercial setting.
(d) It is a defense to distributing a private image if
the distribution of the private image was made in the public
interest, including, but not limited to, the reporting of
unlawful conduct; the lawful and common practices of law
enforcement, legal proceedings, or medical treatment; or a
bona fide attempt to prevent further distribution of the
private image.
(e) For the purposes of determining jurisdiction, the
crime of distributing a private image shall be considered to
be committed in any county in which any part of the crime took
place, in the county of residence of the victim or defendant,
or any county where the image is received.
(f) A violation of this section is a Class A
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(f) A violation of this section is a Class A
misdemeanor. A subsequent adjudication or conviction under
this section is a Class C felony."
"§13A-12-190
For the purposes of this division, the following terms
shall have the following meanings respectively ascribed to
them by this section :
(1)(5) DISSEMINATE. To transmit, distribute, sell,
lend, provide, transfer, or show, including through electronic
means.
(2)(4) DISPLAY PUBLICLY. The exposing, placing,
posting, exhibiting, or in any fashion displaying in any
location, whether public or private, an item in such a manner
that it may be readily seen and its content or character
distinguished by normal unaided vision viewing it from a
public thoroughfare, depot, or vehicle.
(3)(13) PUBLIC THOROUGHFARE, DEPOT, OR VEHICLE. Any
street, highway, park, depot, or transportation platform or
other place, whether indoors or outoutdoors, or any vehicle
for public transportation, owned or operated by government,
either directly or through a public corporation or authority,
or owned or operated by any agency of public transportation
that is designed for the use, enjoyment, or transportation of
the general public.
(4)(7) KNOWINGLY. A person knowingly disseminates or
publicly displays obscene matter when the person knows the
nature of the matter. A person knows the nature of the matter
when either of the following circumstances exist:
a. The person is aware of the character and content of
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a. The person is aware of the character and content of
the matter.
b. The person recklessly disregards circumstances
suggesting the character and content of the matter.
(5)(14)SADO-MASOCHISTIC SADOMASOCHISTIC ABUSE. Such
term means either Either of the following:
a. Flagellation or torture, for the purpose of sexual
stimulation, by or upon a person an individual who is nude or
clad in undergarments or in a revealing or bizarre costume.
b. The condition of a person an individual who is nude
or clad in undergarments or in a revealing or bizarre costume
being fettered, bound, or otherwise physically restrained for
the purpose of sexual stimulation.
(6)(16) SEXUAL EXCITEMENT. The condition of human male
or female genitals when in a state of sexual stimulation.
(7)(17) SEXUAL INTERCOURSE. Intercourse, real or
simulated, whether genital-genital, oral-genital, anal-genital
or oral-anal, whether between persons individuals of the same
or opposite sex or between a human and an animal.
(8)(9) MASTURBATION. Manipulation, by hand or
instrument, of the human genitals, whether one's own or
another's for the purpose of sexual stimulation.
(9)(12) OTHER SEXUAL CONDUCT. Any touching of the
genitals, pubic areas, or buttocks of the human male or
female, or the breasts of the female, whether alone or between
members of the same or opposite sex or between humans and
animals in an act of apparent sexual stimulation or
gratification.
(10)(1) BREAST NUDITY. The lewd showing of the
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(10)(1) BREAST NUDITY. The lewd showing of the
post-pubertal human female breasts below a point immediately
above the top of the areola.
(11)(6) GENITAL NUDITY. The lewd showing of the
genitals or pubic area.
(12)(10) MATTER. Any book, magazine, newspaper, or
other printed material, or any picture, photograph, motion
picture, video cassette, tape, record, digital video disc
(DVD), video compilation, or electronic depiction in a
comparable format, or an image, file, download, or other
content stored, or reproduced by using a computer or
electronic device or other digital storage, or any other
thing, articles, or materials that either are or contain a
photographic or other visual depiction of a live act,
performance, or event.
(13)(11) OBSCENE. a. When used to describe any matter
that contains a visual reproduction of breast nudity, the term
shall include includes all of the following:
1. Applying contemporary local community standards, on
the whole, appeals to the prurient interest.
2. Is patently offensive.
3. On the whole, lacks serious literary, artistic,
political, or scientific value.
b. When used to describe matter that is a depiction of
an act of sado-masochistic sadomasochistic abuse, sexual
intercourse, sexual excitement, masturbation, genital nudity,
or other sexual conduct, the term means matter containing a
visual reproduction that itself lacks serious literary,
artistic, political, or scientific value.
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artistic, political, or scientific value.
(14)(8) LOCAL COMMUNITY. The judicial circuit in which
the indictment is brought.
(15)(18) VISUAL DEPICTION. A portrayal, representation,
illustration, image, likeness, or other thing that creates a
sensory impression, whether an original, duplicate, or
reproduction, including a thing that was generated using
digitization or any other electronic process .
(16)(15) SEPARATE OFFENSE. The depiction of an
individual less than 17 18 years of age that violates this
division shall constitute a separate offense for each single
visual depiction.
(2) CHILD SEXUAL ABUSE MATERIAL. Any obscene matter
containing a visual depiction of an individual under 18 years
of age engaged in any act of sadomasochistic abuse, sexual
intercourse, sexual excitement, masturbation, breast nudity,
genital nudity, or other sexual conduct.
(3) DIGITIZATION. To realistically depict any of the
following:
a. The nude body parts of an individual as the nude
body parts of another individual.
b. Computer-generated nude body parts as the nude body
parts of an individual.
c. An individual engaging in sexual conduct who did not
engage in the depicted sexual conduct. "
"§13A-12-191
Any person who shall knowingly disseminate disseminates
or display displays publicly any obscene matter containing a
visual depiction of a person under the age of 17 years engaged
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visual depiction of a person under the age of 17 years engaged
in any act of sado-masochistic abuse, sexual intercourse,
sexual excitement, masturbation, breast nudity, genital
nudity, or other sexual conduct child sexual abuse material
shall be guilty of a Class B felony."
"§13A-12-192
(a) Any person who knowingly possesses with intent to
disseminate any obscene matter that contains a visual
depiction of a person under the age of 17 years engaged in any
act of sado-masochistic abuse, sexual intercourse, sexual
excitement, masturbation, breast nudity, genital nudity, or
other sexual conduct child sexual abuse material shall be
guilty of a Class B felony. Any transfer of the visual
depiction child sexual abuse material from any electronic
device to any other device, program, application, or any other
place with storage capability which that can be made available
or is accessible by other users, is prima facie evidence of
possession with intent to disseminate.
(b) Any person who knowingly possesses any obscene
matter that contains a visual depiction of a person under the
age of 17 years engaged in any act of sado-masochistic abuse,
sexual intercourse, sexual excitement, masturbation, breast
nudity, genital nudity, or other sexual conduct child sexual
abuse material shall be guilty of a Class C felony."
"§13A-12-193
(a) In proving that a person an individual in a visual
depiction who is engaged in any obscene act set out in
Sections 13A-12-191, 13A-12-192, 13A-12-196 and 13A-12-197
this division is under the age of 17 18 years of age, the
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this division is under the age of 17 18 years of age, the
state is not required to introduce into evidence a birth
certificate, produce testimony as to the date of birth of such
personthe individual, or produce testimony of any person who
knows or is acquainted with the person individual alleged to
be under the age of 17 18 years of age. If the defendant or
the state intends to rely on a birth certificate to prove the
date of birth of any person individual in the visually
reproduced matter, such the defendant or the state shall file
with the clerk of the court in which the action is pending, at
least 15 days prior to trial, a notice of an intention to rely
on an official, certified copy of a birth certificate together
with a copy of the birth certificate.
(b) A jury, or the court if a jury trial is waived, The
factfinder may infer from the following factors whether or not
the person individual displayed or depicted in any obscene
matter is under the age of 17 18 years of age:
(1) The general body growth and bone structure of the
person;individual.
(2) The development of pubic hair or body hair on the
person;individual.
(3) The development of the person's individual's sexual
organs;.
(4) The context in which the person individual is
placed by any accompanying printed or text material ;.
(5) Any expert testimony as to the degree of maturity
of the personindividual.
(c) The existence of any or all of the factors listed
in subsection (b) of this section shall not operate to change
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in subsection (b) of this section shall not operate to change
the requirement that before any conviction may be had, the
state must convince the factfinder beyond a reasonable doubt
that the person individual engaged in the act of
sado-masochistic abuse, sexual intercourse, sexual excitement,
masturbation, breast nudity, genital nudity, or other sexual
conduct in the visual depiction depicted in the child sexual
abuse material is under the age of 17 18 years of age.
(d) If the factfinder is convinced beyond a reasonable
doubt that the face or likeness of an individual under 18
years of age is depicted in any obscene act set out in this
division, the factfinder shall treat that material as child
sexual abuse material, regardless of whether any of the other
physical characteristics depicted do not correspond with the
individual's actual physical characteristics. "
"§13A-12-194
The state shall not be required to establish the
identity, either in the indictment or in any subsequent
proceeding, of the person individual alleged to be under the
age of 17 18 years of age who is engaged in any of the acts
described in Sections 13A-12-191, 13A-12-192, 13A-12-196 and
13A-12-197this division, which are visual depiction."
"§13A-12-196
Any parent or guardian who knowingly permits or allows
their child, ward, or dependent under the age of 17 18 years
of age to engage in the production of any obscene matter child
sexual abuse material containing a visual depiction of such
the child, ward, or dependent under the age of 17 years
engaged in any act of sado-masochistic abuse, sexual
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engaged in any act of sado-masochistic abuse, sexual
excitement, masturbation, breast nudity, genital nudity, or
other sexual conduct shall be guilty of a Class A felony."
"§13A-12-197
(a) Any person who knowingly films, prints, records,
photographs, or otherwise produces any obscene matter that
contains a visual depiction of a person under the age of 17
years engaged in any act of sado-masochistic abuse, sexual
intercourse, sexual excitement, masturbation, breast nudity,
genital nudity, or other sexual conduct child sexual abuse
material shall be guilty of a Class A felony.
(b) For any person who violates this section, each
depiction of each individual less than 17 years of age
instance of child sexual abuse material constitutes a separate
offense."
"§13A-12-198
Any article, equipment, machine, materials, matter,
vehicle, or other thing whatsoever used in the commercial
production, transportation, dissemination, display , or storage
of any obscene matter displaying or depicting a person under
the age of 17 years engaged in any of the obscene acts
described in Sections 13A-12-191, 13A-12-192, 13A-12-196 and
13A-12-197 child sexual abuse material shall be contraband and
shall be forfeited to the State of Alabama. The manner,
method, and procedure for the forfeiture and condemnation of
such thing shall be the same as that provided by law for the
confiscation or, condemnation, or forfeiture of automobiles,
conveyances, or vehicles in which alcoholic beverages are
illegally transported."
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illegally transported."
Section 2. Although this bill would have as its purpose
or effect the requirement of a new or increased expenditure of
local funds, the bill is excluded from further requirements
and application under Section 111.05 of the Constitution of
Alabama of 2022, because the bill defines a new crime or
amends the definition of an existing crime.
Section 3. This act shall become effective on October
1, 2024.
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